PONAMBHAI HEMABHAI CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both Criminal Appeal and Criminal Revision Application arise out of a judgment and order rendered by learned Special Judge and Additional Sessions Judge, Nadiad on 30.1.2009 in Special ACB Case No.2 of 2004 whereby the learned trial Judge recorded conviction of the appellant Punambhai Hemabhai Chauhan for the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 ('Act', for short) and the appellant was sentenced to undergo R.I for two years and fine of Rs.2000/- and in default of payment of fine, S.I for six months for the offence punishable under Section 7 of the Act and R.I for two years and fine of Rs.2000/- and in default of payment of fine, S.I for six months for the offence punishable under Section 13(2) of the Act. Both the sentences were ordered to run concurrently.

(2.) The appellant Punambhai Hemabhai Chauhan challenged his conviction by preferring Criminal Appeal No.323 of 2009 under Section 374 of the Code of Criminal Procedure. At the time when the appeal came up for admission, this Court (Coram: D.H.Waghela, J.) vide order dated 2.3.2009 ordered as under; Admit. Notice for enhancement of sentence. Service of notice is waived by the parties. The appeal may be listed for final hearing as soon as record and proceedings is received and paper book is ready. 2.1 Since the suo-motu notice of enhancement came to be issued, the same was registered as Criminal Revision Application No.328 of 2009. 2.2 It further transpires that this Court rejected the request of the appellant for suspension of sentence pending the appeal and bail. It appears that the appellant moved Honourable the Apex Court and preferred Special Leave to Appeal (Criminal) No.245 of 2009 and vide order dated 15.5.2009, Honourable the Apex Court ordered as under:- We are not inclined to entertain the Special Leave Petition. Having regard to the fact that petitioner has been sentenced to undergo imprisonment for a period of two years and a notice has been issued for enhancement, we request the High Court to dispose of the pending Criminal Appeal No.323/2009 as expeditiously as possible positively by 31st December, 2009. Special Leave Petition is dismissed. Accordingly, the Criminal Appeal was taken up for hearing expeditiously. The prosecution case in nutshell is that on or about dated 20.6.2003, the appellant was serving as Tahiti cum Secretary of Village Sansoli, Taluka Mehamdabad, District Kheda. The first informant Lalabhai Bababhai Parmar had an agricultural land in the outskirts of the Village and was doing business as agriculturist. One Revaben Melaji Parmar happens to be distant aunt of the first informant Lalabhai Bababhai, and Revaben had no issue and had executed a will pertaining to her agricultural land bearing Block No.379 in favour of the first informant Lalabhai. Revaben died on 17.11.1998 and, thereafter, the first informant Lalabhai initiated proceedings for change of name in the Revenue record and as per the prosecution case, for the purpose of mutation entry in revenue record, first informant consulted the appellant Talati cum Secretary. It is the case of the prosecution that the appellant had demanded Rs.3000/- by way of illegal gratification from the first informant Lalabhai for the purpose of carrying out the change entry in the revenue record. First informant Lalabhai was not prepared to part with that much of amount and, ultimately, the amount settled by way of illegal gratification came down to Rs.2000/-. It is the case of the prosecution that immediately first informant Lalabhai paid Rs.200/- by way of gratification to the appellant and Lalabhai requested for sometime to pay remaining amount of Rs.1800/- to the appellant.

(3.) 3.1 It is the prosecution case that on 20.6.2003 first informant Lalabhai went to ACB police station, Nadiad and informed the concerned ACB Police Inspector that as earlier decided between himself and the appellant, first informant was to go to the office of the appellant to pay the remaining amount of illegal gratification being Rs.1800/-, on 20.6.2003. Thereupon a trap was arranged. Two panchas were called. Preliminary panchnama was drawn in the ACB police station, Nadiad. Eighteen currency notes, each of denomination of Rs.100/-, having their numbers noted in the panchnama and after sprinkling phenolphthalein powder on the currency notes, they were inserted in the left side pocket of the shirt of first informant Lalabhai. Thereafter, P.I. ACB Mr. A.R. Patel and panchas along with first informant Lalabhai went to the office of the appellant situated at Village Sansoli. There first informant Lalabhai along with panch No.1 Punambhai Abhesing Parmar met the appellant, and the first informant requested the appellant about the mutation entry in the revenue record, to which the appellant told the first informant Lalabhai that since it was 1.30 p.m. and the bank would be closed at 2 p.m., he had to urgently go to bank to deposit the revenue amount which he received on the day and, therefore, told first informant Lalabhai to come before him on some another day. Thus, as per the prosecution case, the trap arranged on 20.6.2003 did not succeed. 3.2 After dated 20.6.2003, as per the prosecution case, the new date fixed between the first informant Lalabhai and the appellant was 4.7.2003. It is the prosecution case that on 4.7.2003 Lalabhai again went to ACB police station, Nadiad and informed concerned ACB P.I. that on 30.6.2003, he had paid Rs.40/- by way of land revenue to the appellant, and at that time appellant told Lalabhai that on. 4.7.2003, he would undertake the task of change in mutation entry and, therefore, Lalabhai may come to his office on 4.7.2003. In the wake of such information being received by concerned P.I. ACB, Nadiad again those panchas were called. Panchas were apprised about the facts stated by first informant Lalabhai, and the trap was arranged on 4.7.2003. ACB PI Mr.Patel along with two panchas, namely, Punam Abhesingh Parmar and Nilesh Babubhai Chokshi and the first informant Lalabhai carrying those 18 currency notes, each of denomination of Rs.100/-, went to the office of the appellant after preparing preliminary panchnama in the office of P.I. ACB Nadiad. They reached Village Sansoli and the first informant Lalabhai Bababhai along with panch No.1 Punam Abhesingh entered into the office of the appellant. It was decided that as soon as the appellant accepts the 18 currency notes each of Rs.100/- (total comes to Rs.1800/-) some sign was to be made by the first informant after coming out from the office of the appellant, so that ACB P.I. Mr.Patel along with the second panch and the other members of the raiding party would reach to the office of the appellant. It is the case of the prosecution that the first informant Lalabhai requested the appellant to perform the work of change of mutation entry which he had earlier requested to the appellant. It is the prosecution case that the appellant recovered Rs.1800/ - from the first informant Lalabhai and immediately the signal was passed to ACB P.I. Mr.Patel and ACB P.I. Mr.Patel along with second panch Nilesh Babubhai and the other members of the raiding party immediately entered the office of the appellant. Panch No.2 Nilesh recovered the currency notes from the left side pocket of the shirt of the appellant A solution of sodium carbonate came to be prepared and the appellant was asked to dip his fingers of right hand into the solution, and the color of the solution was changed to light pink. The solution was taken in a bottle which was packed and sealed. Some liquid of the solution was sprinkled on the currency notes and the pink colored spots emerged on those notes. The final part of the panchnama was drawn in the office of the appellant. The offence was thereafter registered. ACB P.I. Mr.Limbat conducted the investigation. After obtaining due sanction for launching the prosecution against the appellant, chargesheet came to be filed in the Court of learned Special Judge against the appellant which was registered as Special ACB Case No.2 of 2004.